Lopeta & another v Kapkama (Sued as the Legal Representative of the Estate of Sinen Kapkama) (Environment and Land Miscellaneous Case E010 of 2025) [2025] KEELC 18748 (KLR) (30 July 2025) (Ruling) Neutral citation: [2025] KEELC 18748 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KITALE ENVIRONMENT AND LAND MISCELLANEOUS CASE E010 OF 2025 CK NZILI, J JULY 30, 2025 BETWEEN STEPHEN LOPETA ............................................................................ 1ST APPLICANT CHEPIKAMUK LOPETA ................................................................. 2ND APPLICANT AND CHEPOSOKONG LOTINGO KAPKAMA (SUED AS THE LEGAL REPRESENTATIVE OF THE ESTATE OF SINEN KAPKAMA) ... RESPONDENT RULING 1. The applicants, through an application dated 8/5/2025, seek the court to transfer the suit that was based on adverse possession, initially led at Kapenguria Law Courts, to this court for hearing and disposal. The reasons are contained in a supporting adavit of Stephen Lopeta, sworn on 8/5/2025. The applicants depose that following the lawyer's advice, they led the suit in the lower court, but have now learned that there is a change of legal jurisprudence that magistrates have no jurisdiction to hear and determine such suits. 2. The legal framework governing the concept of adverse possession is to be found in Sections 7, 8, 9, 10, 11, 12, 13 and 38 of the Limitation of Actions Act, as read together with Section 28(h) of the Land Registration Act. 3. Sections 37 and 38(1) of the Limitation of Actions Act, as read together with Order 37 of the Civil Procedure Rules, specically provide that any party seeking to be deregistered as the owner of land out of adverse possession has to move the High Court by way of an originating summons for appropriate declaratory orders. 4. Section 26 of the Environment and Land Court Act grants powers to the Hon. Chief Justice to gazette certain magistrates to hear and determine matters regarding land use and environment, which are https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18748/eng@2025-07-30 1
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within the magistrates' territorial and pecuniary jurisdiction. Jurisdiction is everything and without it, a court has down its tools as held in Motor Vessel Lillian “S” -vs- Caltex Oil (K) Ltd [1989] eKLR. 5. Section 38(1) of the Limitation of Actions Act does not refer to or mention any other court capable of adjudicating over adverse possession. Jurisdiction is a creature of either a statute or a Constitution. It cannot be conferred by the consent of parties or through judicial craftsmanship. Had the Constitution or the Limitation of Actions Act after the Constitution intended magistrates to be conferred with jurisdiction, the legislature and the framers of our Constitution would have expressly stated so. 6. A nullity is a nullity as held in Macfoy -vs- United African Co. Ltd [1961] 3 ALL ER 1169. A suit led in a court bereft of jurisdiction is dead on arrival. 7. A mistake is a mistake, as held in Belinda Murai & Others -vs- Amos Wainaina [1978] eKLR. In Albert Chaurembo Mumba & 7 others -vs- Maurice Munyao & 148 others, SC Petition No 3 of 2016; [2019] eKLR, the Supreme Court held that unless a suit in the rst instance is brought to a court with jurisdiction to try it, an order of transfer cannot be made. In Equity Bank Ltd -vs- Bruce Mutie Muthoka T/A Diani Tour Travel [2016] eKLR, the court held that under Section 18 of the Civil Procedure Act, it is not allowed to transfer a suit from a court without jurisdiction to a court with jurisdiction to try it; otherwise, the court will be sanctioning an incompetent suit. 8. In this application, the court is being asked to do the impossible. The applicant’s suit was dead on arrival. This court cannot even breathe some oxygen under Article 159 of the Constitution to revive an otherwise dead suit. The upshot is I dismiss the application with no order as to costs. 9. Orders accordingly. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 30TH DAY OF JULY 2025. In the presence of: Court Assistant - Dennis Lowasikou for applicant - absent HON. C.K. NZILI JUDGE, ELC KITALE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18748/eng@2025-07-30 2
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